Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment

David Gans

On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court
in Fisher v. University of Texas,
urging the Court to reaffirm that the Fourteenth Amendment permits the
sensitive use of race to foster equality in education and to uphold the
University of Texas’ use of race as one factor in its holistic admissions
policy.The brief is available here.Our brief, filed on behalf of CAC and six of
the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram
Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that
the text and history of the Fourteenth Amendment permit government to take race
into account in certain circumstances in order to ensure equality of
opportunity for all persons regardless of race.

For the last four decades, the fight over the
constitutionality of race-conscious measures to foster equality has been
reduced to a sound-bite – whether the Fourteenth Amendment is “color-blind” –
with conservatives claiming the mantle of Justice’ s Harlan’s dissent in Plessy v. Ferguson to argue that the
Fourteenth Amendment prohibits virtually all use of race by the government.Progressives, all too often, have missed
their most powerful rejoinder: the Fourteenth Amendment’s text and
history.As our brief explains, not only does the Amendment’s text permit government to
enact race-conscious policies to fulfill the Constitution’s promise of equality,
but the Framers of the Amendment themselves enacted many such measures.

The Constitution is certainly color-blind to a certain
extent.In writing the broadest textual
guarantee of equality in our Constitution, the Framers of the Fourteenth
Amendment very deliberately rejected limitations on the scope of the Equal
Protection Clause, sweeping men and women of all races and classes into its
coverage.As the text of the Equal
Protection Clause makes clear, every person can invoke its universal guarantee
of equality.It was precisely for this
reason that Justice Harlan declared in Plessy
that the “Constitution is color-blind, and neither knows nor tolerates classes
among citizens.”But color-blind does
not mean blind to reality.Both in
writing the text and in enacting race-conscious measures to foster equality, the
Framers of the Fourteenth Amendment resoundingly rejected the notion that the
government could not take race into account in order to ensure equality of
opportunity for all persons regardless of race.Faced with the task of fulfilling President Lincoln’s promise of a “new
birth of freedom” and integrating African Americans into the civic life of the
nation, the Framers recognized that the Constitution could not be simplistically
colorblind.

Far from establishing a ban on the use of race by the
government, the Framers of the Fourteenth Amendment, time and again, rejected
proposed constitutional language that would have prohibited all race-conscious
legislation to assist African Americans in the transition to their new status
as equal citizens.Indeed, throughout
Reconstruction, the Framers repeatedly approved race-conscious assistance to
African Americans, passing laws that provided educational assistance to newly
free slaves as well as African American soldiers, helped to ensure that African
American soldiers received bounties for their service in the Union army, and
provided benefits to poor, destitute African Americans.These acts were debated and often opposed on
the ground that the legislation classified on account of race.The Framers consistently rejected these
arguments.In their view, efforts to
ensure equality of opportunity and assist African Americans in securing the
full measure of freedom promised in the Fourteenth Amendment were consistent
with, not contrary to, the new constitutional guarantee of equality.The Framers of the Fourteenth Amendment never
once lost sight of what Justice John Paul Stevens called “the difference
between a ‘No Trespassing’ sign and a welcome mat.”

Fisher gives the
Justices the opportunity to consider the constitutionality of race-conscious
measures to ensure equality of opportunity in light of this text and
history.In the nearly four decades of
Supreme Court precedent on these questions, conservatives have repeatedly
claimed that “the way to stop discriminating on the basis of race is to stop
discriminating on the basis of race,” but have yet to answer the history of
race-conscious measures enacted by the Framers of the Fourteenth Amendment.Only Justice Thomas has tried, arguing in a
footnote in his concurring opinion in Parents
Involvedin Community Schools v.
Seattle School District that “[r]ace-based measures . . . to remedy ­state-enforced slavery were . . . not
inconsistent with the color-blind Constitution.”But, as our brief in Fisher demonstrates, the acts passed by the Framers were not limited
to the former slaves or to the goal of redressing badges of slavery.Rather, like UT-Austin’s use of race at issue
in Fisher, they were forward-looking
in design, seeking to ensure equality of opportunity for African Americans and
fulfill the promise of equality contained in the Fourteenth Amendment.

We hope the Supreme Court honors the text and history of the
Fourteenth Amendment in Fisher and
holds that UT’s sensitive use of race in admissions is constitutionally
permissible in order to ensure
a diverse, integrated student body and to provide pathways to professional life
and leadership for all of the state’s residents regardless of race.

David Gans is the Director of the Constitutional Accountability Center's Human Rights, Civil Rights & Citizenship Program and a co-author of CAC's brief in Fisher. Cross-posted at Text and History.

The only time a court should engage in the snipe hunt of legislative history is when the terms of the law are ambiguous.

The Equal Protection Clause is not.

Equal means equal.

The government cannot discriminate between similarly situated people.

Period.

To the extent that equal is in any way confusing, the cited Reconstruction legislation was meant to remedy the status of slavery or reward ex slaves for joining the Union army. The comparison to Jim Crow or modern racial preferences is inapt.

I do not find the first comment very helpful but still find the discussion too easy.

Mark Field et.al. can put a case for the legitimacy of some sorts of race conscious programs & Brett can come in and firmly call them racist etc., but I'd address a narrow thing here.

Reconstruction is not exactly a hard case. Free or not, "educational assistance to newly free slaves as well as African American soldiers" was a fairly easy case given most blacks were either slaves or clearly strongly discriminated against.

The need, right after slavery was over, was obviously much more clear, even if there still is a need. "Newly freed slaves" involves "slaves," and if there were non-black slaves etc. they would apparently count.

"African American soldiers" involved a mixture of free and slave, but still a lot easier that some AA program that benefits many well off black children. And, even Scalia accepts race based solutions when there is crystal clear cases of compensation warranted. And, black soldiers were clearly discriminated against in pay & so on during the war.

The examples suggest some absolutist rule is ahistorical but how instructive it is for the current policy, especially given the limited reach & alternative means provided to address racial inequality is unclear.

Although I haven't had a chance to read the linked brief yet, I am intrigued by the repeated references to the framers of the 14th amendment in your blog post.

Given the unusual circumstances surrounding ratification (i.e. ratification as a condition of reentry), is it at all reasonable to hold the intentions of the drafters as a valid touchstone for a public meaning analysis?

Is it that simple, or does the concept "equality" have different aspects and dimensions? I know people who think equal means everyone is treated the same, and others who think it means what you say (similarly situated people are treated the same) for example.

Besides, we often have to look beyond the literal text (think of the "Congress shall make no law abridging the freedom of speech"; do you think this should prevent a newspaper from being prevented from publishing, say, the secret movements of our troops during war?).

"the cited Reconstruction legislation was meant to remedy the status of slavery or reward ex slaves for joining the Union army"

This really seems like ad hoc reasoning to me, but more importantly, since only one race could get the assistance, it seems irrelevant.

""Equal means equal." may work in principle but not necessarily in practice, as demonstrated by what happened on the ground and in the air (hanging from trees) post-Civil War Amendments."

That is what comes of not fully enforcing the EPC. After a century and a half of tolerating a wide variety of government racial discrimination, it is long past time for the Supreme Court to draw a bright line and say racism is never permissible for any reason.

"Equal means equal" Is it that simple, or does the concept "equality" have different aspects and dimensions? I know people who think equal means everyone is treated the same, and others who think it means what you say (similarly situated people are treated the same) for example.

That is a very good debate, but irrelevant for this issue because government racial discrimination would be prohibited under either theory.

"Besides, we often have to look beyond the literal text (think of the "Congress shall make no law abridging the freedom of speech"; do you think this should prevent a newspaper from being prevented from publishing, say, the secret movements of our troops during war?)."

The term equal is far more definite than the term speech.

BD: "the cited Reconstruction legislation was meant to remedy the status of slavery or reward ex slaves for joining the Union army"

W: This really seems like ad hoc reasoning to me, but more importantly, since only one race could get the assistance, it seems irrelevant.

The laws meant to assist slaves were meant to remedy the status of slavery, not to assist a particular race. Modern racial preferences assist anyone of a favored race regardless of any other status.

I must say I do find it interesting that Jack Balkin would sign on to this brief, which argues (as I read it on quick skim, feel free correct me) that, because the framers of the 14th Amendment believed it allowed for race-conscious remedies, later generations are bound by this understanding. I would have thought that Balkin's interpretive method would say that the principle of equal protection that was enacted must be open to reinterpretation based on later generation's views as to what is, in fact, "equal." And while I do not personally believe the time has come when our society has reached such a level of equality that race-conscious remedies are no longer appropriate, if and when we reach that point, surely someone like Jack Balkin would say the Framers' belief that such remedies were appropriate cannot be deemed to trump that determination.

"After a century and a half of tolerating a wide variety of government racial discrimination, ...."

enumerating the beneficiaries/victims of such discrimination. It seems clear that our yodeler does not desire fair balancing as he wishes to draw a bright line to blind the victims for the benefit of the beneficiaries, perhaps in fear of demographics.

gcedwards10, where does the brief said that society is "bound" to use "race-conscious remedies" even if they are not necessary to obtain true equal protection?

I take the brief as saying that original understanding allows it as well as precedent and the contrary argument is unfounded. A 'reinterpretation' is acceptable. But, society has not done so, including in Texas, where this policy is allowed.

"government racial discrimination would be prohibited under either theory"

Well, I only offered those two as examples that the concept might be more complex than your formulation, but aside from that I'm not sure you're right here. One might argue that due to a history of discrimination and its lingering effects blacks are not similarly situated to whites.

"The term equal is far more definite than the term speech"

Maybe so, maybe not, but newspaper stories are pretty uncontroversially usually counted as "speech", and yet we have never allowed such speech. The point is we don't always take the most literal, strict sense of a concept in the Constitution.

"The laws meant to assist slaves were meant to remedy the status of slavery, not to assist a particular race"

The brief points out instances where the benefits of legislation were applicable to non-slave blacks as well as former slaves. But additionally I think, since only one race was slaves I'm not sure there is a distinction with a difference in what you wrote.

"After a century and a half of tolerating a wide variety of government racial discrimination, it is long past time for the Supreme Court to draw a bright line and say racism is never permissible for any reason."

Hey, it's impacting white people now, so let's draw that line! ;)

"the Democrat principles of intergenerational guilt and judging people by the melanin content of their skin"

Perhaps some do, but I think you are mischaracterizing what many people's "Democrat principles" are in this area. They don't think affirmative action should exist because whites today need to pay for what whites did in the past, they believe it should exist because the effects of past discrimination have placed some significant disadvantages on blacks, and real equality of opportunity, which can benefit whites and blacks alike, might mean a helping hand to ameliorate these disadvantages.

"The point is we don't always take the most literal, strict sense of a concept in the Constitution."

Indeed, it's more accurate to say that we NEVER do that. Otherwise, to use an easy example, only Congress would be barred from infringing freedom of speech. The President and the Courts would be free to do so.

I'm not for laying intergenerational guilt on our yodeler. Rather, he spews fear, not guilt, with his bright line drawing. By the way, might our yodeler offer us the tipping point for drawing that bright line: Was it the 13th A? the 14th A? the 15th A? Plessy v. Ferguson? Brown v. Bd. of Education? Civil Rights Acts of the mid 1960s? Election of Barack Obama? Demographics?

An argument could be made that the original intent of the post war amendments was "unconstitutional", inconsistent with previous understandings. But constitutional consistency and Biblical inerrancy are related. Reading is interpretation, and saying with Scalia, "the constitution as I interpret it is a dead constitution" is oxymoronic. To quote a figure in the last administration, "we invent our own reality"It's our job to make lemonade of lemons or something palatable with what we have before us, and to argue with each other over whether to add sugar or salt. The argument over a common text is more important than the text itself. As to liberal pretensions: Wickard v. Filburn helped secure US domination of the post war world. Democracy might have been stronger if the decision went the other way. And then there's Derrick Bell on Brown.

From the first link above, written by J.J. Gass and Nathan Newman for the Brennan Center:in 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau.21 Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts. Opponents, including Johnson, raised the same arguments that would be marshaled against affirmative action programs a century later, but well more than the necessary two-thirds of Congress concluded that the 13th and 14th Amendments authorized race-conscious legislation to ameliorate the social condition of blacks.

"to the point that black children in the South were often better educated than their white counterparts."How's that for a brilliant way to sow anger and mistrust among the poor white trash? I was blown away, not by the injustice but the sheer stupidity. It was a stupid move by white liberals trying to help and succeeding more at feeling good about themselves.

When Harold Washington won his first term as mayor of Chicago, after a divisive election in which the white vote was split, one of the first things he did was tour white working class neighborhoods on the north side. In the words of someone who was there he walked around and in his theatrical tone said "Hey, These streets are a mess! These garbage cans haven't been emptied for weeks! We'll have to do something about that!" And he did. The locals were shocked. They never though a black mayor would give a damn about them. Washington won his second term running against only one significant opponent,"Fast Eddie" Vrdolyak.

"They don't think affirmative action should exist because whites today need to pay for what whites did in the past, they believe it should exist because the effects of past discrimination have placed some significant disadvantages on blacks, and"

in order to remedy this, the white children of Appalachian subsistence farmers and Japanese Americans who lost everything in the WWII internment should be disadvantaged in order to advance the children of wealthy immigrants who happen to be black.

See, that's the problem when you apply "remedies" on the basis of race, and exact the cost of them on the basis of race, with no interest in whether any particular instance of remedy or cost has anything to do with justice in the specific instance. That's what happens when you regard members of races as interchangeable units, of whom skin color tells you everything.

" ... to advance the children of wealthy immigrants who happen to be black."

What are the numbers of such children and what are the sources for such information? The matter of " ... the white children of Appalachian subsistence farmers ... " is a remnant of chattel slavery, victims of the southern slaveholders' interests. Following the Civil War Amendments, continued discrimination against African-Americans did not benefit these white children of Appalachia, as they provided cheap labor when a significant number of African-Americans moved north. Perhaps Brett thinks these children might have been better off if chattel slavery had not been outlawed by the Civil War Amendments.

As for such Japanese Americans, that was a mistake that was rectified to significant extent after a much shorter time than it took to undo slavery and then to undo Jim Crow (which continues to a limited extent to date).

Brett seems fearful of the demographics, perhaps even closer to home; of course Brett has his arsenal at the ready in his defense: "That's what you do when you're a racist."

no interest in whether any particular instance of remedy or cost has anything to do with justice in the specific instance.

Not shown. Brett in effect points out that the remedy is overbroad. This was a concern of those back in 1865. After all, why should starving poor whites pay for well off blacks (perhaps newcomers from Canada or heck maybe even children of Fredrick Douglas) getting benefits? Have a rule that applies equally! etc. etc.

But, remedies tend to be somewhat overbroad. Also, as has been pointed out, even well off blacks, immigrants or not, are burdened by racism. The "badges and incidents of slavery" did not and in effect still does not just fall on the slaves and their immediate descendants. Free blacks in Boston, even those newly arrived from the UK, had to deal with discrimination because of the evils of slavery.

So, there is "something" here. Also, the people behind this policy has some "interest" in balancing the various complications involved. This is taken into consideration when the program is set up, this one a narrow one that involves a limited number of spaces total.

In no way is it based on the sentiment that race can tell you "everything," other matters such as sex, citizenship, sports ability, intellectual ability, place of origin, where you went to high school, etc., factored in to determine student placement.

The fact remains that race continues to be a concern in this country, a source of discrimination and has relevance. It is not "racist" to carefully take this into consideration. Brett yet again exaggerates to criticize a less than totally ideal means to deal with a problem that has no totally ideal solution.

Affirmative action based on economic status not ethnicity. As for the rest I second Mark Graber. Democracy in any form requires indoctrination. It's an ideology no less than Brett's antisocial libertarianism. Freedom in Brett's sense is the luxury of newborn babies and sociopaths. Ayn Rand was honest enough to praise the latter. In dreams begin responsibilities. Teachers like soldiers serve the people. Men who prize their own interests should be taxed for their pleasure.And Bart's problem is not that its impossible to logically twist words away from the common understanding of their meaning, but that he's an uneducated coward who is willing to destroy the country to save it. He's a philosopher of doom. He's like Sandy Levinson in that. If only Levinson were as interested in democracy in Tel Aviv.

I would love to see how Bart will argue that a black person and a white person in the U.S.A. are "similarly situated."

The only differences between the generic races are completely cosmetic.

Racial preferences are based entirely on those cosmetic differences and do not require slave ancestry or define what disabilities accrue from being several generations removed from slavery. Indeed, racial preferences depend entirely on self reporting and apply the one drop rule. See Elizabeth Warren.

It is time to stop the intellectual games. Racism cannot be justified under law or morally.

" Freedom in Brett's sense is the luxury of newborn babies and sociopaths. Ayn Rand was honest enough to praise the latter. "

D. Ghirlandaio is clearly dishonest enough to lie about that. While I would not go so far as to say I've read everything Rand ever wrote, I have probably read the majority of her philosophical works, and all of her novels. Praise for sociopaths was conspicuously missing.

Before calling someone "dishonest" or say the person is "lying," it would be helpful to know what they mean. I don't know how "sociopath" is being applied here. One definition being "someone who behaves in a dangerous or violent way towards other people and does not feel guilty about such behavior" only makes it more unclear.

"t is time to stop the intellectual games. Racism cannot be justified under law or morally."

But this sweeps slavery, Jim Crow, continued discrimination against people of color, etc, under the rug as if never having occurred and no one being impacted.

Perhaps our yodeler may now respond to this earlier comment of mine in response to an earlier comment by him:

"I'm not for laying intergenerational guilt on our yodeler. Rather, he spews fear, not guilt, with his bright line drawing. By the way, might our yodeler offer us the tipping point for drawing that bright line: Was it the 13th A? the 14th A? the 15th A? Plessy v. Ferguson? Brown v. Bd. of Education? Civil Rights Acts of the mid 1960s? Election of Barack Obama? Demographics?"

But of course, Brett, injustices continue today with people of color, thus your fear of demographics and the pendulum swing for which he is up in arms. I wonder if Brett can provide a tipping point for when, he thinks, fairness and justice made everything hunky dory for people of color.

"But of course, Brett, injustices continue today with people of color,"

As they do with people of non-color. But that's the difference between racists and non-racists: Racists think you know what you need to know about somebody once you know their race. Non-racists understand that color tells you nothing about individuals except their pigmentation. That the particulars matter.

You want an affirmative action program for the disadvantaged? Sure, go for it. Expect to get a lot of lily white poor people applying, and a lot of black people failing to qualify.

The problem is, you don't want affirmative actions for the disadvantaged. You want affirmative action for blacks, on the premise that any given black can be regarded as disadvantaged, without any further inquiry as to whether they grew up in a ghetto or a mansion.

Which is to say, a sociopath gave her some literary ideas, for a character who wouldn't have been a sociopath. "with a purpose. And without the degeneracy." scarcely sounds to me like praise.

Unless maybe you personally approve of purposeless degenerates, and so just naturally took this for praise.

The only innocent explanation for this is that you swallowed some anti-Rand propaganda from somebody else, and never lifted a finger to investigate if it was honest. Shall I retract "liar" in favor of "cretin"?

"Rand denounced the hanging as, 'The mob’s murderous desire to revenge its hurt vanity against the man who dared to be alone.'"

I grew up as a white kid in a black neighborhood. I'm not going to lecture you about what my friends -my black friends- put up with. I spent a lot of my adult life in the building trades. I'm not going to lecture you about what my black, and latino coworkers put up with. You've demonstrated over and over that empiricism is beyond you. Stick to blogging about self-replicating machines, your masturbatory fantasy. Please for god's sake, give up your pretensions to the intellectual life.

Shag then notes not only did it not just happen "generations ago," but they continue. Brett skips over that he was wrong (again) to note that others are discriminated against too.

And, colleges -- since they don't just look at color -- address that too. Texas colleges and much as any other that use race as a plus don't merely use race. They have various criteria that addresses various aspects of people. Where does Shag or me or Mark Field or anyone here oppose them but only support race based programs? Where?

Such is the whole point of Powell's opinion in Bakke. If Brett actually cares about what people he calls "racists" actually do, this should matter to him.

Critics of affirmative action really deserve better analysis than this. And, what exactly does Hickman (as compared to someone who didn't do such heinous things) "suggest" to her?

Joe, are we really going to pretend that it's the day after the Civil war ended? Still? Brown was 58 years ago!

They're fighting for affirmative action back in Michigan! A state that never had legal slavery. They had to invent "diversity" as an excuse for it, they've gotten so short on actual evidence of invidious discrimination. I live in the south, (Greenville) and see interracial couples everywhere.

You're fighting the last war, and piling up today's casualties in the process. Well, I don't want my son to be one of them, just because he's not a member of the right minority.

At this point it's just an excuse to buy the loyalty of a particular ethnic group with racial spoils, and nothing more.

Joe, are we really going to pretend that it's the day after the Civil war ended? Still? Brown was 58 years ago!

The very first comment from me discussed how I think the brief is of limited value since AA today is a much closer case than the needs of 1865. So, no.

OTOH, yes, there continues to be racial discrimination (no, not just affirmative action programs) in this country and all the problems of slavery and the resulting history hasn't all disappeared. Brown didn't suddenly make everything better.

They're fighting for affirmative action back in Michigan! A state that never had legal slavery.

I'm trying not to be sarcastic here but you do realize that racism (legalized and otherwise) did (does) exist even in the North where slavery ended early, right?

They had to invent "diversity" as an excuse for it, they've gotten so short on actual evidence of invidious discrimination. I live in the south, (Greenville) and see interracial couples everywhere.

The presence of interracial couples doesn't mean there is no discrimination or racism.

"Diversity" is not something "invented" any time recently. I've been down this road before. Diversity was a goal from the time this country was founded in any number of areas. Any implication that race only is being used here for diversity cases is specious.

Well, I don't want my son to be one of them, just because he's not a member of the right minority.

Why do you refuse to respond to the fact that colleges use LOTS of criteria to pick their students, race but one aspect of the mix? Your myopia while alleging others have it is ironic.

At this point it's just an excuse to buy the loyalty of a particular ethnic group with racial spoils, and nothing more.

Again, critics of AA really deserve a better argument than the specious argument that "racial spoils" is the only reason they use race as but one of a myriad of factors in picking students and do so for various reasons, even if you think it as a whole is not worth the candle.

I appreciate Brett saying he was 'intemperate' but I'm still not sure why DG is wrong. I think labeling someone a liar is a problem itself but beyond that, an argument was made. Since both seems to have have more about Rand than I, the details of the argument matters to me too.

The reason he's wrong, Joe, is that Rand didn't praise Hickman. She was inspired by his case to create a fictional character who was in some respects similar, but in other respects very different.

This is a pretty basic point, and central to his complaint that Rand praised a sociopath. She thought he had some characteristics which were interesting, and maybe desirable in somebody who wasn't scum. That's hardly praise for the whole man.

He produces a link to a website. Follow it. Pretty heavy on why Hickman was scum, but you'd think if Rand praised him, they could produce better evidence than a few out of context quotes, most of them not even complete sentences. (Though the number of actual quotes is so small I hesitate to use the word "most".)

That's the sign of a hit piece, IMO.

Rand was an advocate of the pursuit of enlightened self interest. This is a viewpoint which is easy to misrepresent to people who've been raised to think that altruism is a virtue, and self-interest a vice.

Her point, essentially, was that anybody who genuinely rejected their own self-interest in favor of altruism would kill themselves. Read The Virtue of Selfishness if you want her views not through the filter of somebody who loathes them.

I assume that Brett is supporting R-MONEY/R-AYN 2012 and not Obama/Biden. Despite R-AYN's more recent efforts to distance himself from Ayn Rand, Brett continues to push the latter and her as a "Major Philosopher" of the 20th century. (Perhaps Brett enjoyed the raciness of Rand's novels more than the philosophical, assuming Brett was young and foolish when he initially read them.)

Regarding Brett's ignoring of racism history, perhaps he might read today's NYTimes obit "Karl Fleming, 84, Journalist Who Covered Civil Rights Era" (p. 20). In 1965 he was assigned to LA and in May of 1966, he covered the Watts riots, where he suffered a beating by a mob.

"But Mr. Fleming was not bitter. 'If I was a young black growing up on the streets of Watts,' he wrote in his book, 'seeing what they had seen and going through what I know what they went through to survive, I might feel like hitting some white guy in the head, too.'"

Also of interest in today's NYTimes is John G. Turner's Opinion Piece "Why Race Is Still a Problem for Mormons." It seems doubtful that R-MONEY is prepared to address this problem.

I don't ignore racism's history, I note that it's history we're talking about.

Present offenses have identifiable offenders and victims. Historical offenses are sunk costs. If you can't connect the person you're proposing to harm to the person you're proposing to benefit, what makes you any better than the KKK riding out to lynch a random black? Good intentions?

We will never bit rid or racism so long as racial discrimination is official policy.

BD: "t is time to stop the intellectual games. Racism cannot be justified under law or morally."

Shag: But this sweeps slavery, Jim Crow, continued discrimination against people of color, etc, under the rug as if never having occurred and no one being impacted.

Racism does not remedy racism. End it.

Shag: By the way, might our yodeler offer us the tipping point for drawing that bright line: Was it the 13th A? the 14th A? the 15th A? Plessy v. Ferguson? Brown v. Bd. of Education? Civil Rights Acts of the mid 1960s? Election of Barack Obama? Demographics?"

A "tipping point" wrongly assumes that government racial discrimination was at any point legitimate after ratification of the EPC. It is time for a bright line because the Court has never stopped ignoring the EPC and tolerating government racial discrimination. End it.

" ... the KKK riding out to lynch a random black"? My, my, because, according to Brett:

"To benefit the beneficiaries, it has to hurt somebody else, in a zero sum world."

The person "hurt" is still living and has many educational choices other than the death that the KKK would have dealt to "a random black" they would lynch.

Our dyslexic duo, Brat and Bert, in tandem display their vileness: "A random black" apparently has no value and his death at the hands of the KKK by lynching is the equivalent of a random white student denied admission to a particular college? Of course, legacy admission would be appropriate and not a hurt in their zero sum world.

First, it is not clear to me that Hickman was the only possible "sociopath" (including using the definition I supplied) that possibly could be cited.

D. didn't say that is all he had. It was an example. In effect, you don't think the source he supplied (if pressed, I'm sure he can supply another) was deep enough in making its case. But, the article, e.g., cites a book that does not merely cite "out of context" quotes.

Many of us think "altruism is a virtue" and it in our "self-interest" to be altruistic, since "no man is an island" and all that. The fact someone disagrees with Rand, at any rate, doesn't mean -- though you have a black/white view of things all so often -- that they all "loathe" her. And, they can validly think that reliance too much on mere self-interest, not the good of society as well, can at some point be a promotion of the way of a "sociopath" -- someone who doesn't care about society, is truly interested only in self-interest.

The word being open-ended in meaning. As to the other issue, racism isn't merely "history." The effects continue and race conscious programs, again just one part of student placement, is but a limited way it is addressed. Since we are members of society, we are "connected."

Separately, "KKK riding out to lynch a random black" ... yes, getting some more points toward admissions is akin to lynching people.

No lack of perspective there!

As noted, college admissions has any number of criteria that encourages the entry of various groups, the policy here not even the primary way racism and racial inequality is addressed in Texas (the 10% plan being more important there & that just might make the USSC deem this one invalid being it is unnecessary).

Each criteria is a result of looking at the needs of the community as a whole, each specific person affected by law not somehow directly at fault for the concern involved.

This is how our "self-interest" is promoted under this country's constitutional system. Some might not like the system. They can change it. DOI and all that.

"Our dyslexic duo, Brat and Bert, in tandem display their vileness: "A random black" apparently has no value and his death at the hands of the KKK by lynching is the equivalent of a random white student denied admission to a particular college? Of course, legacy admission would be appropriate and not a hurt in their zero sum world."

Is that your point of view? It's ok for you to discriminate against my Asian-American son, because you'll stop short of killing him? Maybe just deny him admission to the school of his choice, in order to make room for somebody with inferior academic qualifications, but who looks "right"? Or maybe cheat him out of a job he was the best applicant for?

It's ok, because you don't put a rope around his neck, and hang him from a tree?

What a contemptible viewpoint, but what I've come to expect from 'liberals'. Who are all "justice" this, and "fairness" that, but only in the abstract, not in any particular case.

But the world is made up of nothing but particular cases, and if you're for injustice in particular cases, you're for injustice, period.

Note that Brett fails to respond on legacy admissions, i.e., those admitted because of family/financial connections to a college, depriving those with superior educational qualifications of placement in schools of their choice.

As for Brett's Asian-American son, who is not yet a teenager as I recall, he could be a beneficiary of affirmative action. I have no idea of the intellect of Brett's son, but with Brett's vileness if passed on via genes, he may need affirmative action. Or perhaps Brett has the legacy genes to help his son get in the school of his choice.

When lynching is mentioned, I am reminded of Billie Holliday's rendition of "Strange Fruit." I wonder if there is a comparable ballad about someone denied admission to a college of his/her choice because of affirmative action. (Ted Nugent?)

No injustice is too small to fight for, such as in Loving v. Virginia, of which Brett, his bride and their son became beneficiaries, thanks to the U.S. Supreme Court and the Postal System. Does Brett ignore that history of injustice with a loving heart?

A major point made by the author of The Condemnation of Blackness dealt with ethnic crime classifications that changed with the Civil Rights movement to focus on whites, blacks, others. Also, he discusses NYC's stop & frisk policy. Ignoring history?

Bart, are you an originalist or not?Was the "original intent" of the framers of the New Birth Amendments unconstitutional? They promoted discrimination based on race but framed amendments in race neutral terms. A brilliant decision, to set their own policies on auto-destruct, but only after they'd begun to do their work. And we're still arguing.

Racial progress has been made and racism still exists. Does affirmative action now harm or help? Go at it. But Scalia and Thomas are both the result of affirmative action. In Scalia's favor? He was the first Italian American Justice.

Something else to match the irony in Wickard v. Filburn. Liberals like to complain that working class people want to be able to pass along their trades from father to son. They don't put it quite that way at least publicly but the contempt is there. Liberals claim to mock tribalism in the name of enlightened reason. The contempt is not based on the racism of the white working class but for the working class as such. Modern liberal legislation has reduced private life to public life and all social activity to economic activity. Enlightened reason is now synonymous with capitalism. Capitalism destroys the family. A respected liberal philosopher and blogger, Harry Brighouse of Crooked Timber, has published papers on "legitimate parental partiality" and the dangers of preference for one's own children. It's anti egalitarian!

White liberals have never really accepted the fact that civil rights movement was not led by idealistic middle class college students and enlightened academics but by working class blacks and their priests.

Finally:In the old days the ACLU was staffed by people so rich that they had time to fight for good causes and by others so committed to the cause that they didn't care that they were poor The ACLU defended fascists and communists and the KKK and stayed out of second amendment cases because the questions clearly came down to politics. Now you have yuppie careerists who worry about gun control: shallow people full of earnest self-regard.

So Reagan harmed non-Italian Americans by putting Scalia on the court. And Thomas has no place there.And the first woman would have been appointed sooner or later, maybe even by 2012. Pat Buchanan says 'White men built this country." Even you'd call that racist. But if the members of our elite could say "What does it matter that all our friends are white?" What then?

Bias to defeat bias: never? sometimes? Should bigotry be allowed to fade so that minorities over each successive generation suffer a little less than their parents? Or should it be crushed? Is that even possible?Most American liberals consider the ethnic cleansing of Palestine "a necessary crime": Josh Marshall's description of the Nakba. I would have thought the better crime would be the Jewish conquest of the Rhineland.

As I said above, the greedy should pay for their pleasure. Greed is not my pleasure Most of the people responsible for the computer revolution, those still alive, are employed by universities or they now enjoy a healthy retirement thanks to TIAA-CREF. Greed is stupid, but it's inevitable. What do we do?Questions, questions.

"In the course of our discussion with Reagan the first time we were talking about the candidates . . . we had talked about Scalia. Reagan had asked me whether Scalia was of Italian extraction. I think he used the word 'extraction,' and I said, 'Yes, he's of Italian extraction.' Reagan said, 'That's the man I want to nominate, so I want to meet him.' We brought Scalia in. . . . The president met Scalia, and he offered Scalia the job right on the spot, in about 15 minutes, very little ceremony here. Scalia accepted on the spot. He was delighted. That was it. . . .

"I think [Reagan] felt that it would be great to put an Italian American on the Supreme Court. He had all the usual American instincts: 'We don't have an Italian American on the court, so we ought to have one.' He really felt good about doing that. It wasn't principle so much as that kind of emotional commitment."

"the white children of Appalachian subsistence farmers and Japanese Americans who lost everything in the WWII internment should be disadvantaged in order to advance the children of wealthy immigrants who happen to be black"

I think affirmative action should be class based for this very reason, but I think supporters would answer you that the nature of racism and discrimination in America was such that it attached to color such that even a recent black immigrant to the US would be impacted by the lingering effects of racism.

"You can't un-happen history"

But you can try to ameliorate its effects on the present, in fact to not do this seems to many to be perpetuating the resuls of that history.

"Racists think you know what you need to know about somebody once you know their race"

You might think supporters of AA just think you can know (probablistically) something, rather than everything, by race. Also, I think racism usually has an additional element: thinking a race inferior and deserving of poor treatment. Supporters of AA don't seem to be doing that.

"I think racism usually has an additional element: thinking a race inferior and deserving of poor treatment."

That's the "But OUR intentions are good!" defense, and I don't buy it. Who thinks themselves evil, as they do it? For the victims of evil, it is sufficient that evil is being done, the reason for it's doing is beside the point.

The evil isn't why you're discriminating on the basis of race, it's THAT you are so discriminating.

The distinction is not between intending evil and not, it is between intending to help or harm. The KKK certainly did what it did out of a desire to harm blacks, supporters of AA do what they do out of a desire to help blacks. Another way to see it is the KKK is motivated by the idea that blacks were inferior or bad in some way while supporters of AA don't think of those who get discriminated against under AA in that way.

Different intents, and not good vs. evil...Intent is usually pretty important in moral matters.

Are you sure they didn't do it out of a desire to help whites? But the question is irrelevant. It's precious little consolation that you've been wronged because somebody wanted to do somebody else some good, and you were just the egg that had to be broken to accomplish it.

I haven't read the Amici brief of CAC. But I just finished reading the Amici brief of The Advancement Project, submitted by counsel, Tomiko Brown-Nagin and Lani Guinier, both on the faculty of Harvard Law School, supporting the UT policy. A link to their brief is provided in a post by Prof. Brown-Nagin at the Legal History Blog. (A link is also provided to access all briefs filed in Fisher v. UT.) Here's the first paragraph of their brief Summary:

"Fisher v. Texas is unlike any affirmative action case this Court has ever confronted. For the very first time in history, the U.S. Supreme Court is asked to rule on the constitutionality of an admissions program designed to increase racial diversity at a university located in a southern state - Texas."

Their Argument sets forth history, facts, of UT (and State of Texas) discriminatory steps against blacks and latinos that are eye-opening.

The narrative portion of their brief is a quick read, as Amici brief requirements of the Court limit the size of such briefs.

Shortly, I plan to read the Amici brief of the Asian American Legal Defense and Education Fund, et al, that also supports the UT policy.

titigit81"The meaning of equal has not changed and is not in any way vague."

I think the same Congress that ratified the 14th did so in a segregated building, so that's a pretty hard thing to argue (unless you think Plessy was correctly decided).

"Government racial discrimination can also be because the government thinks the benefiting race is inferior and cannot succeed without help"

Perhaps, but I don't think most supporters of AA think the beneficiaries are inferior. To the extent they think they "need" help they think they need it because they face obstacles others don't. That's hardly thinking someone is inferior.

"legacy admissions are usually given to the kids of alumni who donate to the school. Is that a rational reason for discriminating on their behalf?"

Wait a minute: you think a rational basis would be sufficient for a government school to treat two applicants unequally (which is what legacy admits do)?

I think you and I can agree that the KKK was at least in part motivated by an antipathy towards blacks, right? There doesn't seem to be this going on with most affirmative action supporters.

"It's precious little consolation that you've been wronged because somebody wanted to do somebody else some good"

This makes me think of when a car in front of you allows another car to come out and the resulting wait causes you to miss the light. It's very frustrating! But would anyone think that is the same as someone just sitting in front of you until the light turns yellow and then zooming through leaving you at the light out of spite? You might think the results warrant deciding that people should do neither, but I don't think it warrants deciding the two are the same. Likewise, while I'm no fan of affirmative action I don't lump its supporters in with the KKK.

I just finished reading the Amici brief of the Asian American Legal Defense and Education Fund, et al, that supports the UT policy. I learned quite a bit about the Asian American community in TX and in the rest of America. Very eye-opening. Perhaps because of Brett's concern for his Asian American son, he might find the UT policy beneficial, and perhaps move to TX to take advantage of it. If Brett deigns to read this brief, his comments on it might be interesting. The Petitioner in Fisher v. UT takes the position that the UT policy would discriminate against the interests of Asian Americans by favoring blacks and latinos. This brief emphatically disagrees.

Even if proponents of racial preferences could define what it means to be "victims of systemic racism," government racial discrimination against innocent third parties is not a proper remedy for past discrimination against the recipients of racial preferences.

No matter how you spin it, racial discrimination is racial discrimination and is per se wrong and a violation of the EPC. End it.

"The only possible basis for supporting "affirmative action" is because you believe that all people with a certain melanin content in their skin cannot succeed without government help."

That's simply not true, most supporters of affirmative action don't think of blacks as inferior at all, they think of them as disavantaged by a legacy of racism, much of which was state sponsored.

"If that was the case, then such programs would be based upon income or some other factor besides skin color."

I'd rather they were, but one nee not conclude because a broad remedy was sought that they didn't have this in mind. The idea is supposed to be that blacks in general suffer disadvantages; of course some may overcome this and do quite well, but that doesn't mean they didn't have obstacles to overcome or that in general blacks are more disadvantaged. Besides, given the conservative antipathy to needs based programs like welfare I somehow doubt changing these programs to need based would cause many conservatives to stop denouncing them and start supporting them...

"Even if proponents of racial preferences could define what it means to be "victims of systemic racism," government racial discrimination against innocent third parties is not a proper remedy for past discrimination against the recipients of racial preferences"

So you were being a bit disengenuous above when you assaile the programs for not sticking only to ones who could show victimization...

I'm curious. The state certainly fostered and enforced racism against blacks for many years. Currently, blacks seem disavantaged relative to whites in many areas. You don't think there is a connection there? And if there is, what can or should be done to ameliorate it? Or do we let the racists of the past "win" in the present?

BD: "The only possible basis for supporting "affirmative action" is because you believe that all people with a certain melanin content in their skin cannot succeed without government help."

Mr. W: That's simply not true, most supporters of affirmative action don't think of blacks as inferior at all, they think of them as disavantaged by a legacy of racism...

What is the effective difference between "inferior" and "disadvantaged" in your mind? In both cases, you are assuming that "all people with a certain melanin content in their skin cannot succeed without government help."

BD: "If that was the case, then such programs would be based upon income or some other factor besides skin color."

Mr. W: I'd rather they were, but one nee[d] not conclude because a broad remedy was sought that they didn't have this in mind.

I conclude precisely that.

Proponents of racial preferences use race as a proxy because they cannot demonstrate how past discrimination caused specific identifiable disabilities which would be remedied by applying racial preferences.

Mr. W: So you were being a bit disengenuous above when you assaile the programs for not sticking only to ones who could show victimization...

I am systematically slapping down the usual excuses for racial preferences offered by their supporters and not admitting that they are justified for demonstrated victims of racial discrimination or anyone else.

Mr. W: I'm curious. The state certainly fostered and enforced racism against blacks for many years. Currently, blacks seem disavantaged relative to whites in many areas. You don't think there is a connection there?

My experience is that African Americans are often socialized to believe that academic and other types of success means that they are acting white and are to be avoided. However, when you replace that socialization as we did in the Army by challenging everyone to perform, African Americans are just as capable as anyone else without racial preferences or other similar crutches.

IF it could be shown that blacks are burdened, they are not in equal position as others, so giving them a small plus (less so than based on being in certain high schools over other high schools) is not legally "discrimination."

It is treating people in different situations differently. If someone discriminated against gets a 85 it very well might be as good as a person w/o such burdens getting a 86. The "innocent" bit is a canard.

BTW, like Whiskas, I'm more inclined to support other methods, but not seeing broad support of them, such as expanding social programs to support broad based need. Some opponents are willing to walk the walk here and I respect them for it. There is some common ground possible.

My experience is that African Americans are often socialized to believe that academic and other types of success means that they are acting white and are to be avoided. However, when you replace that socialization as we did in the Army by challenging everyone to perform, African Americans are just as capable as anyone else without racial preferences or other similar crutches.

# posted by Bart DePalma : 2:44 PM

That's priceless. I'll bet the slave owners also "challenged them to perform". You'd think they'd do better with that sort of work ethic instilled in them.

"What is the effective difference between "inferior" and "disadvantaged" in your mind?"

Why, it's the difference between the fault being within and without.

"In both cases, you are assuming that "all people with a certain melanin content in their skin cannot succeed without government help.""

There's a critical difference; if disadvantaged then if there were no disavantages we would expect success, if inferior removing disadvantages wouldn't help.

"Proponents of racial preferences use race as a proxy because they cannot demonstrate how past discrimination caused specific identifiable disabilities which would be remedied by applying racial preferences."

Perhaps they just noted that the racist measures of the past were generally applied to blacks and the cultural prejudices fostered by those measures were as well, and think that the fact that successful black persons can be found doesn't detract from the idea of general disadvantage (they may have succeeded despite it).

"I am systematically slapping down the usual excuses for racial preferences offered by their supporters and not admitting that they are justified for demonstrated victims of racial discrimination "

It's interesting that while you say that supporters of AA must be using race as a proxy because they cannot demonstrate specific disadvantages from discrimination you also state that were such things to be shown you would still oppose it. But more importantly, here you are stating that the racism of the state from the past gets to continue to harm the children of the people it directly oppressed, because you don't think it should be ameliorated in any way. No help can be given even though many have been, and still are being, harmed by these acts...

"My experience is that African Americans are often socialized to believe that academic and other types of success means that they are acting white and are to be avoided"

I find it incredible that you think that the glaring disparities between whites and blacks in general can be explained not by hundreds of years of oppressive state racism, but instead simply by this differential socialization you point to. I mean, how counter-intuitive is that?

But let's say we conceded that this alone was the cause: now you have to answer why this differential socialization is so prevalent among blacks. Might THAT have something to do with the history of slavery and Jim Crow?

"I find it incredible that you think that the glaring disparities between whites and blacks in general can be explained not by hundreds of years of oppressive state racism, but instead simply by this differential socialization you point to. I mean, how counter-intuitive is that?

About as counter intuitive as the notion that any living person has experienced hundreds of years of oppressive state racism. You've got a 17 year old; How are events of 200 years ago supposed to effect him besides being transmitted to him via socialization? Lysenko style genetic regression? Memories of prior lives?

Socialization makes the difference between the ghetto inhabitant who disdains academic achievement, and immigrants who under no better conditions live 10 to a flat while building wealth. It's the difference between a hunter-gatherer and a software engineer. Socialization is ENORMOUS.

The problem liberals face in this regard is that confronting this requires admitting that not all cultures are created equal. That the "legacy of slavery" is just exactly that cultural diversity that they treasure, and that they won't ever fix that legacy without destroying that culture.

"About as counter intuitive as the notion that any living person has experienced hundreds of years of oppressive state racism"

Of course the living person has not experienced hundreds of years of racism. But the effects can be felt on that person.

A man comes to America with nothing. He works hard, and when he dies he leaves a paid for modest home and, unlike himself, a high school educated son. That son works hard and leaves to his son two houses and his son gets a college education. Keep extrapolating here.

Well, most blacks were blocked on this path for hundreds of years in the United States. A black kid born today might be, at best, in the third generation removed from when "his kind" had little or no access to good jobs and education. So for many blacks, they are well behind whites in financial, human and social capital.

"Socialization is ENORMOUS"

Sure, I agree (I'm a big fan of Thomas Sowell's work in this area btw). But it's not everything, and it often interacts with and is a response to what are called "structural opportunities" (when a community has little opportunities in an area they often develop cultural norms which devalue such things).

Anyways, like I said, even if we were to concede that it is ALL socialization you have to account for why that type of socialization is so prevalent in black communities as opposed to white ones. It strikes me as silly to think "liberal elites" just conjured up and blessed this value system onto blacks. Do you think that the idea of disdaining academics might have come from centuries of being denied basic educational opportunities? Do you think norms that don't value hard work and thrift might have come from centuries of not only being denied many economic opportunities, but for hundreds of years actually having one's work violently appropriated from them?

"The problem liberals face in this regard is that confronting this requires admitting that not all cultures are created equal"

I hate to break up the talk radio party, but a lot of liberals don't believe that.

If you have to say "most" or "a lot of" when describing a group of people, you might just be eliding differences within the group. If you are truly a champion of individuals being evaluated on an individual basis, I humbly suggest you rid yourself of that particular behavior.

Otherwise, you're just (re)producing group-level differences. When such differences are thereafter used to rank groups (either in ability or willingness to perform), you've crossed the line from reinforcing illogical folk categories to something more insidious.

Of course, it may be that there are empirically observable group-level differences in terms of opportunity and ability, and those differences may indeed have something to do with enculturation. However, if that's the case, one has to question whether that is the result of an extreme coincidence where millions of individuals all found themselves in a similar condition through some psuedo-random process or the result of sharing a set of conditions from the outset.

In short, if "most American students" are bad at math, the problem may not be the students, but the educational system. Making a correction at the individual level will not be cost-effective (and perhaps not effective at all). Group-level action would seem to be warranted in such cases, and our public policy is filled with such actions being initiated by people across the entire political spectrum.

I don't think you can agitate for "individual merits only" and simultaneously employ the "African-American culture devalues academic success" tactic without bending the rules of cake. If African-American culture truly devalues academic success, we have an obligation to pose that as a problem and solve it, not out of a supposed liberal desire to alleviate guilt/commit suicide through altruism/etc., but out of our shared values to see all Americans succeed. That's what equal opportunity is about.

In short, if there are systemic problems, there must be systemic solutions, unless you want to piss time and resources down a hole. Some will work better than others--and I think several other commentators have made it clear that the solutions themselves are often essentialized beyond recognition.

PMS' comment make strong points. However, I am not quite sure of this reference:

" ... without bending the rules of cake."

I cook quite a bit but bake only a tad. I can ad lib with a recipe I am cooking and get good (sometimes even better) results but I have heard from Julia Child and others that baking requires precision. Is this PMS' point? If so, what are the "rules of cake" to be applied here?

"But I’m not persuaded that it’s at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed 'underrepresented') and disfavoring Asian-Americans (who are deemed 'overrepresented')."

Maybe DB should read the Amici brief of the Asian American Legal Defense and Education Fund, and other Asian American individuals/groups, in support of the UT policy which they view as favorable to Asian Americans.

Is our yodeler aware of the history of Texas on slavery, secession, Jim Crow, segregation, resistance to Brown v. Board of Education that continued until quite recently that the current UT policy seeks to address to compare with the history of the U.S. military that began in the 1940s with Pres. HST's Executive Order? The UT policy is a very late in the game effort to address UT and Texas' racial problems. UT is trying a solution after its many failures. Our yodeler condemns this effort. Perhaps the U.S. military should take over Texas.

Those interested in the UT and Texas history should read the Amici brief of The Advancement Project referenced in an earlier comment of mine. Such history is spelled out at pages 8 - 32 of the brief. It's not pretty.

"I don't think you can agitate for "individual merits only" and simultaneously employ the "African-American culture devalues academic success" tactic without bending the rules of cake. If African-American culture truly devalues academic success, we have an obligation to pose that as a problem and solve it, not out of a supposed liberal desire to alleviate guilt/commit suicide through altruism/etc., but out of our shared values to see all Americans succeed. That's what equal opportunity is about. "

No, it's not. This is a basic error, like confusing justice and mercy. Equal opportunity doesn't seek to undo differences between people and cultures, it provides a fair basis on which to compete, without any thumb on the scale. Which inevitably has the effect of highlighting differences caused by acculturation, not ameliorating them.

Equal opportunity is the New Haven fireman's test, which the unprepared flunk without respect to race. It's the Olympics, where if you're acculturated not to strive, you can't make it.

Equal opportunity is justice, not mercy.

There's a place for what you're describing, in the private sector. But not in the government, which due to it's involuntary relationship with everybody is especially obligated to treat all the same.

"The cause is irrelevant. What is important is the solution to the problem."

It's often best in devising solutions to know more about the cause of the problem to be solved.

"Rewarding a lack of performance by awarding the fruits of performance based on skin color reinforces the negative socialization and enables a continued failure to perform."

I think supporters of AA would point out that it operates not to enable a "continued failure to perform" but rather to give some people a chance to perform. For example, it might operate to give a young person admission to a college they were on the border of not getting, but it doesn't ensure success at the college.

"The military has demonstrated that the solution to this negative socialization is to challenge everyone to perform and refusing to accept a failure to perform"

Perhaps Brett can provide an objective measure of the "merit" that he thinks should apply to college admissions. Does one size fit all applicants? Should such objective measure of the "merit" be applied universally, or may some adjustments be appropriate such as those successful with the birth lottery?

Once we have Brett's objective measure of the "merit," perhaps we can apply it historically to consider whether it has been applied in an objective manner since the Civil War Amendments.

Equal opportunity doesn't seek to undo differences between people and cultures, it provides a fair basis on which to compete, without any thumb on the scale.

We are back to LBJ's "equal opportunity" of a person with a ball and chain & true equal opportunity here DOES deal with this, including helping the side that is burdened more at the start.

[This goes beyond proof of the specifics, which is something of a red herring if even this basic point cannot be agreed upon.]

Equal opportunity is the New Haven fireman's test, which the unprepared flunk without respect to race. It's the Olympics, where if you're acculturated not to strive, you can't make it.

Yes, like an IQ test is purely neutral if it is written in a way familiar to a certain culture, it is wrong to show there is a bias there. The skill of a athletic race is not the same as the specific biases of a certain testing regime.

Equal opportunity is justice, not mercy.

"Mercy" is not so easily defined.

But not in the government, which due to it's involuntary relationship with everybody is especially obligated to treat all the same.

"We the people," including at times by referendum, pass the laws. As to the private sector, repeatedly, the "voluntary" relationship is bogus. What sort of "voluntary" relationship does someone have with a private utility company needed for their power or the food for their children when there isn't a real alternative.

Anyway, I appreciate support for the legitimacy of private affirmative action, which is beyond what many on your side would go.

You admit people without regard to merit

The programs, including this one, requires merit. The difference is a subset to determine who fills in limited slots. Like those who get in via athletic scholarships, some who benefit might also require some continual help to succeed, underlining that such programs are only part of the solution.

Brett doesn't appear to like certain aspects of the U.S. Constitution, ala Sandy Levinson, but that isn't necessary, of course. The thing there is that he repeatedly sees things as pretty obvious and is annoyed when people ignore such "obvious" things, at the clear lawlessness of it all, when repeatedly at the very least his view of things is far from obvious. (I'd say "wrong," but that's far from necessary to show the problem of the approach.)

[note: People of various sides at times think things too obvious. It surely isn't limited to Brett's viewpoint.]